Citation Nr: 21076461 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-31 852 DATE: December 23, 2021 ORDER New and material evidence having been received, the application to reopen the claim for entitlement to service connection for a liver condition is granted. Entitlement to a rating of 10 percent, but no higher, for residuals of a gallbladder removal is granted. Entitlement to a compensable rating for surgical scars associated with a cholecystectomy is denied. Entitlement to a compensable rating for pseudofolliculitis barbae is denied. REMANDED Entitlement to a rating higher than 10 percent for bilateral keratoconus, glaucoma, and a left corneal transplant is remanded. Entitlement to service connection for a liver condition is remanded. FINDINGS OF FACT 1. Additional evidence received since a prior, final and binding, July 2012 regional office (RO) decision denying service connection for a liver condition is not cumulative or redundant of the evidence considered in that earlier decision, relates to an unestablished fact necessary to substantiate this claim, and raises a reasonable possibility of substantiating the claim. 2. The Veteran's residuals from his gall bladder removal are manifested by mild symptoms. 3. The Veteran's surgical scars associated with a cholecystectomy are not painful or unstable and do not exceed 39 square centimeters. 4. During the period on appeal, the Veteran's pseudofolliculitis barbae covered less than 5 percent of exposed areas and did not require the use of topical therapy. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for entitlement to service connection for a liver condition have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to a rating of 10 percent, but no higher, for residuals of a gallbladder removal have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 7318. 3. The criteria for entitlement to a compensable rating for surgical scars associated with a cholecystectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805. 4. The criteria for entitlement to a compensable rating for pseudofolliculitis barbae have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105(a), 4.118, DC 7813-7806 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Coast Guard from May 1990 to July 1990 and from July 1991 to May 1997. By way of procedural history, the Veteran requested a hearing before the Board in his June 2017 VA Form 9. A Central Office hearing was then scheduled for October 10, 2019. However, the Veteran was deemed a no-show for the hearing, and to date, he has not requested that the hearing be rescheduled. As such, the Board finds that his request for a hearing has been withdrawn. The Board additionally notes that VA treatment records were added to the claims file after the issuance of the Veteran's May 2017 Statement of the Case (SOC). However, these records merely show a history of the Veteran's gallbladder removal, his associated surgical scars, and pseudofolliculitis barbae. They are duplicative or cumulative of evidence already in the claims file and discussed in the SOC. As such, the Board may consider the records in the first instance. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a liver condition. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The Veteran's claim for entitlement to service connection for a liver condition was last considered and denied by a July 2012 rating decision. The basis of the denial was that the Veteran did not, at that time, present evidence indicating he was currently diagnosed with a liver condition. The Veteran did not timely appeal that decision and it became final/ VA treatment records as well as a July 2016 Gallbladder and Pancreas conditions VA examination indicate, however, that the Veteran has been diagnosed with a chronic liver condition. This is new and material evidence and, therefore, reason to reopen his claim. To this extent only, the appeal is granted. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 2. Entitlement to a rating of 10 percent for residuals of a gallbladder removal The Veteran contends that he is entitled to a compensable rating for his service-connected residuals of a gall bladder removal. Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's residuals of his gall bladder removal is currently rated under DC 7318, which pertains to residual symptoms after gall bladder removal. Under DC 7318, a noncompensable evaluation is warranted for the non-symptomatic residuals of removal of the gall bladder, a 10 percent evaluation is warranted where there are mild symptoms, and a 30 percent rating is warranted where there are severe symptoms. The Board notes that words such as "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. See 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A review of the Veteran's medical history shows that he underwent a cholecystectomy (removal of the gall bladder) in 1996. The Veteran was provided VA examinations in August 2015 and July 2016. The Board notes that the Veteran applied for an increased rating for residuals of his gallbladder removal on July 15, 2016. According to 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date. See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C. § 5110(a), (b)(2); Hazan v. Gober, 10 Vet. App. 511 (1997). Therefore, the Board has also considered the Veteran's earlier August 2015 VA examination as a part of the Veteran's increased ratings claim. During his August 2015 VA examination, the Veteran reported he was not experiencing any symptoms related to his gallbladder removal. A physical examination revealed a well-healed scar less than 39 square cm (6 square inches). Lab testing was found insignificant, but abdominal imaging indicated findings compatible with parenchymal liver disease. The Veteran's liver condition will be discussed in the remand portion of this decision below. The Veteran received an additional VA examination in July 2016 at which time he reported experiencing GI symptoms including difficulty digesting certain foods, gas, bloating, and diarrhea. The Veteran's VA treatment records do not show more severe symptoms than those noted on VA examination. For example, VA treatment records from October 2015 show that the Veteran denied experiencing diarrhea, abdominal pain, or constipation. The Board has considered the statements of the Veteran that he experiences GI symptoms related to his gall bladder removal. The Veteran is competent to report his observable symptoms, such as pain from difficulty digesting food and experiencing gas, bloating, and diarrhea. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As such, the Board finds that the Veteran is entitled to a 10 percent rating, but no higher, based on his reported symptoms of abdominal pain. While the Veteran is competent to report what he experiences, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The medical evidence of record does not demonstrate pain or other symptoms that manifest in excess of mild severity. To the extent that the Veteran contends he is entitled to a rating in excess of 10 percent, the Board finds the medical record to be more probative than the Veteran's subjective complaints of increased symptomatology. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's symptoms from chronic cholecystitis with gall bladder removal more closely approximate the criteria for a 10 percent rating, but no more. See 38 C.F.R. §§ 4.3, 4.7. The Board finds that the evidence weighs against a finding that the criteria for a rating in excess of 10 percent under DC 7318 are met or approximated for any period. During the period on appeal, the Veteran's symptoms were not severe as required for the next higher rating of 30 percent. His VA treatment records do not show any sustained symptomatology related to his gall bladder removal, much less severe symptoms. As such, the Board finds that the preponderance of the evidence weighs against awarding a rating higher than 10 percent. 38 C.F.R. § 4.104, DC 7318. 3. Entitlement to a compensable rating for surgical scars associated with a cholecystectomy is denied. The Veteran's surgical scar is rated noncompensable under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. He contends, however, that he is entitled to a compensable rating. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's surgical scars associated with a cholecystectomy under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's surgical scars associated with a cholecystectomy is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's surgical scars associated with a cholecystectomy is not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Veteran was provided a VA examination in July 2016. Three residual linear scars status post laparoscopic cholecystectomy were noted measuring approximately 1 cm by 0.1 cm and located along his anterior trunk, umbilical area and abdomen. They were observed to be neither painful nor unstable. The Board acknowledges that the Veteran believes that his scars warrant a compensable rating and are more severe than the assigned disability rating reflects. However, he does not assert, and medical records do not show, that his surgical scars associated with a cholecystectomy are manifest by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for surgical scars associated with a cholecystectomy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a compensable rating for pseudofolliculitis barbae is denied. The Veteran contends he is entitled to a higher rating for his pseudofolliculitis barbae. Here, the Veteran's pseudofolliculitis barbae is rated under Diagnostic Code 7813 7806, which indicates that pseudofolliculitis barbae has been rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are assigned a four digit diagnostic code with the first two numbers selected from the part of the rating schedule that most closely identifies the part or system of the body involved and then the last two digits of "99"); see also 38 C.F.R. § 4.27 (stating "if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen"). Effective August 13, 2018, the schedule of ratings for the skin was amended. 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). Claims pending prior to the effective date will be considered under both the old and new schedules, and whatever schedule is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new schedule will be applied. Because the Veteran's claim was filed prior to August 13, 2018, the Board will consider both schedules. Prior to August 13, 2018, Diagnostic Code 7813 provides compensation for service-connected dermatophytoses, including ringworm of the body (tinea corporis), head (tinea capitis), feet (tinea pedis), beard area (tinea barbae), nails (tinea unguium), and inguinal area (jock itch, tinea cruris). 38 C.F.R. § 4.118. Such disorders are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. Id. Effective August 13, 2018, Diagnostic Code 7813 provides compensation for service-connected dermatophytoses, including ringworm of the body (tinea corporis), head (tinea capitis), feet (tinea pedis), beard area (tinea barbae), nails (tinea unguium, onychomycosis), and inguinal area (jock itch, tinea cruris), and for tinea versicolor. 38 C.F.R. § 4.118. Such disorders are to be evaluated under the General Rating Formula for the Skin. At the outset, the Board notes that the Veteran's pseudofolliculitis barbae has not predominantly caused painful or unstable scarring or disfigurement of the head, face, or neck at the level of severity contemplated by Diagnostic Codes 7800 through 7805. The Veteran was afforded a VA scars examination in July 2016. The examiner determined that the Veteran had a diagnosis of pseudofolliculitis barbae. The examiner indicated that there were no painful or unstable scars and there was no disfigurement of the face in the form of scars. There was no tissue loss or other characteristics of disfigurement. Therefore, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, and 7805 are inapplicable in this case. Diagnostic Code 7806 provides compensation for service-connected dermatitis or eczema. 38 C.F.R. § 4.118. Prior to August 13, 2018, a noncompensable rating is provided where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating is provided where: (i) at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas are affected; or (ii) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration less than six weeks during the past 12-month period A 30 percent rating is provided where: (i) 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or (ii) systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is provided where: (i) more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or (ii) constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. Effective August 13, 2018, dermatitis or eczema is evaluated under the General Rating Formula for the Skin. 38 C.F.R. § 4.118. A noncompensable rating is provided for no more than topical therapy required over the past 12-month period and at least one of the following: (i) characteristic lesions involving less than 5 percent of the entire body affected; or (ii) characteristic lesions involving less than 5 percent of exposed areas affected. Id. A 10 percent rating is provided for at least one of the following: (i) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (ii) at least 5 percent, but less than 20 percent, of exposed areas affected; or (iii) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. 38 C.F.R. § 4.118. A 30 percent rating is provided for at least one of the following: (i) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (ii) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. 38 C.F.R. § 4.118. A 60 percent rating is provided for at least one of the following: (i) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (ii) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118. The Federal Circuit noted that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.'" Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs," but are instead available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Warren v. McDonald, 28 Vet. App. 194, 197 (2016). Turning to the relevant evidence, during his July 2016 VA examination, the Veteran reported experiencing pseudofolliculitis barbae symptoms, to include facial irritation, intermittent bumps with bleeding and puss. He also reported limiting shaving once a week to minimize razor bumps. He did not report, nor do treatment records indicate, treatment with oral or topical medication. Less than 5 percent of his skin was noted to be affected. Specifically, the examiner noted facial hair with a few scattered bumps along the Veteran's jaw line with no irritation, bleeding, or pus. No other pertinent physical findings were noted. The Veteran's VA treatment records show that he has been prescribed hydrocortisone ointment, however, this is for irritation related to his lower leg. In view of the foregoing and with particular probative value afforded to the observations noted by the July 2016 VA examiner, the Board finds that the Veteran does not meet or nearly approximate the criteria for a compensable rating for his pseudofolliculitis barbae under any of the potentially applicable diagnostic codes, to include as staged or separate ratings. Specifically, treatment records and his July 2016 VA examination indicate that his pseudofolliculitis barbae affects less than 5 percent of the entire body or less than 5 percent of exposed areas are affected and requires no more than topical therapy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for bilateral keratoconus, glaucoma, and a left corneal transplant is remanded. The Veteran was provided an eye examination in August 2016. The examiner indicated that visual field testing was performed using Goldmann's equivalent III/4e target, which showed that the Veteran had a visual field defect. The associated Goldmann's visual field chart was not included with the report and is not otherwise included in the claims file. Under the regulations in effect prior to May 13, 2018, in all cases, the results of visual field testing must be recorded on a standard Goldmann chart and the chart must be included with the examination report. See 38 C.F.R. § 4.77. A remand is therefore necessary to attempt to obtain the Goldmann charts. Remand is also warranted to afford the Veteran a new eye examination. VA treatment records associated with the claims file since the Veteran's last examination in August 2016 suggest the Veteran's eye disability has worsened. Specifically, in an August 2019 treatment note, the Veteran is noted the be prescribed medication for his ocular hypertension. In July 2019, he reported blurred vision upon waking. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Overall, based on the evidence suggesting the Veteran's disability has worsened, the Board finds that the Veteran's claim should be remanded for a new VA examination to determine the current severity of his disability. 2. Entitlement to service connection for a liver condition is remanded. The Veteran contends that his currently diagnosed liver condition is etiologically related to service. His service treatment records (STRs) indicate he underwent a liver biopsy following his gallbladder removal surgery due to elevated liver enzymes. He contends that his elevated liver enzymes during service are related to his current liver condition. Thus, a remand is warranted to determine whether the Veteran's currently diagnosed liver condition is related to his service. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the August 2016 Goldmann visual field charts. All efforts to obtain such records should be documented in the claims file. 2. Schedule the Veteran for a VA eye examination to determine the current severity of his service-connected bilateral keratoconus and glaucoma. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. The examiner should specifically identify the disease, injury, or other pathologic process responsible for any visual impairment found and describe in detail all pertinent symptomatology and findings. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner should consider all applicable rating criteria during the appeal period, including the versions of the eye rating criteria effective prior to and effective from May 13, 2018. 3. Schedule the Veteran for a VA examination for his liver condition. After thoroughly reviewing the Veteran's claims file, the examiner is asked to opine whether the Veteran's current liver condition is at least as likely as not related to service, to include the elevated liver enzymes noted in the Veteran's treatment records. A complete rationale for any medical opinion rendered must be provided. MARTHA L. TIERNEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.